Appellate Court
Modification of decree—Power of Appellate Court—Suit for declaratory relief—Impugned judgment has not considered whether a ground is made out for modifying a decree or not—High Court has disturbed a finding of fact, leading to modifying the decree of the Trial Court without there being an appeal/cross-appeal—Findings of the High Court are not tenable in the facts and circumstances of this case.
[Para 21]
Constitution of India, 1950
Article 136—Re-appreciation of evidence is normally not undertaken by the Apex Court, however, in a given case, the re-appreciation of evidence is not barred under Article 136 of the Constitution—Incorrect appreciation of evidence and inconsistent findings in impugned judgments, warrant re-appreciation of evidence to appreciate the real issue between the parties.
[Paras 14 & 15]
Mohammedan Law
Oral gift—Effect of a valid oral gift—Reiterated as follows :
Held : There are three essential conditions for an oral gift under Mohammedan Law.
First, a clear manifestation of the wish to give on the part of the donor.
Second, an acceptance of the gift by the donee, which can be either implied or explicit.
Third, taking of possession of the subject-matter of the gift by the donee, either actually or constructively.
A gift under Mohammedan Law does not require a written document to be valid. An oral gift that fulfils the three essential requisites is complete and irrevocable. The mere fact that a gift is reduced to writing does not change its nature or character. A written document recording the gift does not become a formal instrument of gift.
The distinction that a written deed of gift is not required to be registered if it “recites the factum of a prior gift” but must be registered if the “writing is contemporaneous with the making of the gift” is considered “inappropriate and is not in conformity with the rule of gifts in Mohammadan Law”. Section 129 of the Transfer of Property Act, 1882 (‘Transfer of Property Act’) excludes the rule of Mohammedan Law from the purview of Section 123, which requires registration for the gift of immovable property.
Delivery of possession is a critical and necessary element for a valid gift. It can be actual or constructive. Constructive possession can be demonstrated by overt acts by the donor that show a clear intention to transfer control. For example, the donor applies for the mutation of the donee’s name in the revenue records.
Continuous evidence of acting under the oral gift is crucial to prove the delivery of possession. The donee must be able to demonstrate “exclusive control” over the property to derive benefit under it, such as by collecting rent, or by the donor performing acts like mutation on behalf of the donee. Conversely, the donor’s continued collection of rent and the donee’s lack of control over title documents or mutation records can be evidence that possession was not transferred.
[Para 36]
Oral gift/Hiba—Suit for declaration of ownership and cancellation of sale deeds—Hiba is not used as a surprise instrument and cannot sprout into a transfer of property as per the convenience of a party—Moreover, to keep in line with the sanctity of Hiba, it is in the interest of the donor, donee and a third person interested in the subject matter that Hiba is acted upon by completing all three essential requirements in public knowledge rather than in secrecy—Courts appreciate fulfilment of contemporaneous requirements and possession through evidence while recognising conveyance through an oral gift—Possession is one of the important conditions to constitute a valid oral gift—Courts presume possession of a party from the circumstances pleaded and proved.
[Para 39]
Limitation Act, 1963
Article 59—Suits to set aside instrument of sale—Whether the suit for declaratory relief was barred by limitation—Failure of plaintiff to apply for mutation at many available opportunities—Plaintiff has not acted in time in challenging the maintenance of ROR, or registered sale deeds, within the time stipulated by law—Conduct for over a period of 23 years cannot be appreciated as the conduct of a passive observer but amounts to failure to use the care that a reasonably prudent and careful person would use under these circumstances—Negligence in law signifies a failure in the performance of duty—To set aside instruments of sale, the muster under Article 59 of the Limitation Act must be met—It is axiomatic that there is a presumption that a registered document is validly executed—A registered document, therefore, prima facie would be valid in law—Onus of proof, thus, would be on a person who leads evidence to rebut the presumption—Respondent has not been able to rebut the said presumption—Constructive notice is put against defendants despite there being no public record of the oral gift or the claim to the suit property—Suit is barred by limitation.
[Paras 44, 46, 47 & 48]